Two years after the Supreme Court decriminalised Section 377 IPC, four LGTBQ community members requested the Delhi HC to legalise same-sex marriage under Hindu Marriage Act, but ran into opposition from the Centre, which said this fell foul of several criminal and civil laws recognising marriage only between a “biological man and woman”. The petitioners - Abhijit Iyer Mitra and Gita Thadani with Gopi Shankar M and G Oorvasi - told a bench of Chief Justice D N Patel and Justice Prateek Jalan that Section 5 of Hindu Marriage Act, 1956, provides that “a marriage may be solemnised between any two Hindus” and hence there could be no objection to same-sex marriage between two Hindus of LGTBQ community. But the Centre, through solicitor general Tushar Mehta objected to the petitioners’ plea. Mehta said he had no instructions from the government on the specific issues raised by the petitioners. However, he said he could off-hand argue that same-sex marriage ran counter to several criminal and civil laws recognising marriage between “biological men and women” only.
He said the country’s social norms and cultural ethos were codified in statutory laws, like prohibited degrees of relationships and 'sapinda' marriages, and added that both conditions had varying criteria for a man and woman entering into a matrimonial alliance. In a same-sex marriage, who will be the man and who will be the woman to fasten this statutory condition, he asked. The SG said there were different age criteria for men and women in a marriage and asked how that was going to be enforced. In case of domestic violence in a same-sex marriage, who will be the woman for enforcement of her rights under the Protection of Women from Domestic Violence Act, 2005, he asked.
Mehta also cited Section 498A of Indian Penal Code, which punishes a husband and his relatives for inflicting mental and physical torture on the wife for a jail term up to three years. Judicial interpretation of the laws also provide that if a woman commits suicide or dies an unnatural death within seven years of marriage, then cruelty would be presumed and the case would be investigated. He drew the court's attention to the problems in enforcing this provision in a same-sex marriage.
He said at the moment, he could think of these legal complexities that could arise if same-sex marriage was legalised, and said since it would require amendments to many criminal and civil laws, it would be best to leave this issue for determination by Parliament through debate. "It would not be proper for the court to take up amendments to so many legislations," he added.
